An Administrative Law Judge for the Equal Rights Division of the
Department of Industry, Labor and Human Relations issued a decision in
the above-captioned matter on September 21, 1991. Respondent filed a
timely petition for review by the Commission and both parties
submitted written arguments.

Based upon a review of the record in its entirety, the Labor and
Industry Review Commission issues the following:

FINDINGS OF FACT

1. Vic Tanny is a business which operates health clubs in the
Milwaukee area, including clubs in Brookfield, downtown Milwaukee,
Cudahy and West Allis. Admission is open to the public upon payment of
a uniform membership fee.

2. Complainant, Charles Malecki ("Malecki") is a male who became a
member of Vic Tanny in Milwaukee in 1987. He continued his membership
through at least February 1990.

4. The shower rooms for males and females are the same size and have
the same number of shower heads. However, in the shower rooms for
females, there are aluminum partitions between the shower heads.

5. The dressing room areas for males and females are the same size.
However, in the dressing room area for females, there are a number of
separate changing enclosures in which individuals may change; there
are no such separate changing enclosures in the men's dressing room
area. In the area of the men's dressing room which corresponds to the
area of the women's dressing room in which the separate changing
enclosures are located, there are additional lockers which are not
present in the women's dressing room. There are eight additional
lockers in the men's dressing room for each separate dressing
enclosure in the women's dressing room.

6. Both the men's and women's locker rooms have a separate shower
stall accessible to handicapped persons, and both have toilets in
enclosures with doors.

7. Vic Tanny has received no complaints from female customers about
inadequate locker space, but it did receive complaints from female
customers about limited privacy availability when remodeling limited
the privacy available in changing and showering, and there have been
occasional complaints from women about other female patrons they
considered to be immodest about nudity in the changing area.

8. With the exception of the charge filed by Malecki with the Equal
Rights Division, Vic Tanny has received no complaints from male
customers about inadequate availability of privacy in the men's locker
room, but it has received complaints from male customers about
inadequate locker space on the men's side.

9. The differences in the nature of the facilities provided in the
men's and women's locker rooms at Vic Tanny are not motivated by any
desire to discourage either males or females from utilizing Vic
Tanny's facilities, nor do they have that effect.

Based on the FINDINGS OF FACT made above, the Commission makes the
following:

CONCLUSIONS OF LAW

1. Vic Tanny's health clubs are public accommodations within the
meaning of sec. 101.22(9), Stats.

2. Vic Tanny does not violate sec. 101.22(9), Stats., by
maintaining aluminum partitions between shower heads in the women's
but not the men's shower rooms, by maintaining separate changing
enclosures in the women's but not the men's dressing rooms, or by
providing more locker space in the men's than in the women's dressing
rooms.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the
Commission now makes the following:

That the complaint in this matter be dismissed.

Dated and mailed August 7, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

Standing -- Respondent argues that complainant lacks "standing" to bring
this complaint. Thus, Respondent cites and discusses court decisions
on "standing," and also asserts that "in order to bring a complaint
under the Wisconsin Public Accommodations Law, the Complainant must
have a substantial interest in the outcome of the complaint, under
section 227.01(3), Stats."

However, this statutory section is merely the definition of the term
"contested case" which appears in the Administrative Procedure Act. It
cannot fairly be read to impose some kind of limit on a right to bring
a complaint when that right is affirmatively created by other
statutory language. Neither in this section nor anywhere else in the
Administrative Procedure Act is there any "standing"-type limitation
on who may bring complaints before administrative agencies.
Respondent's reasoning, however, seems to be that since a complainant
has a right to request judicial review, "it can be safely inferred
that the same requirement for standing is applicable" for proceeding
before the agency as for requesting judicial review of the agency's
decision.

This inference is in fact not a safe one. As the Commission recently
held in Milwaukee Metropolitan Fair Housing Council v Goetsch (LIRC,
December 6, 1991), the rules governing the right to seek judicial
review are not necessarily the same as the rules governing
commencement of a proceeding before an administrative agency. The
Commission held in Goetsch that under secs. 101.22(3) and (4), Stats.,
which are the procedural provisions governing both housing
discrimination and public accommodation complaints, and the ERD rules
which have been promulgated thereunder, any "person" may file a
complaint without regard to notions of "standing."

In any event, this complainant's connection to Vic Tanny is real
enough. He was a member there within 300 days of the filing of his
complaint. As such, he was (by virtue of his membership) within the
group of persons potentially affected by Vic Tanny's practices with
regard to its facilities.

Therefore the Commission rejects Respondent's argument that
Complainant has no standing. The issue of "standing" is simply not one
of any significance in the matter of commencing complaints of public
accommodations discrimination.

Statute of Limitations -- Respondent also argues that the complaint was
untimely under the 300-day statute of limitations that governs public
accommodation discrimination complaints, because the statute of
limitations began when Complainant first joined Vic Tanny in January
1987 and had therefore expired when he finally filed his complaint in
November 1990. This argument is based on the fact that Complainant
learned that there were "gang showers" and no private dressing areas
on the men's side when he joined, and on the claim that he could have
learned at this time of the different facilities on the women's side.
Apart from the legitimate question as to whether Complainant could
reasonably have been expected to have inquired into the facilities in
the women's side at the time he joined, this argument about the
statute of limitations is irrelevant because of the nature of the
alleged violation. The maintenance of different facilities is a
continuing act. Had this case involved something like a refusal to
allow a person to join or to be served, then it would be appropriate
to apply a conventional statute of limitations analysis which assumes
a single act of discrimination occurring at a particular time
following which the statute of limitations begins to "run." However,
because Respondent has maintained the different facilities at all time
material, the complaint was timely.

Merits -- Complainant asserts that Vic Tanny violates the Public
Accommodations Law by maintaining separate shower enclosures and
separate dressing enclosures in the women's locker rooms of its
athletic clubs, while not providing such separate enclosures in its
men's dressing rooms.

Provisions of the Public Accommodations Law which are relevant to this
claim are that it prohibits denial of (or charging a higher price
for) the full and equal enjoyment of any public place of accommodation
or amusement because of sex, and that it prohibits giving preferential
treatment to some classes of persons in providing services or
facilities in any public place of accommodation or amusement because
of sex.. Section 101.22(9)(a)1., 2., Stats. However, it also contains
two provisions specifically concerning, among other things, "showers .
. . and dressing rooms for persons of different sexes," which are of
particular importance in this case. They provide:

(b) Nothing in this subsection prohibits separate
dormitories at higher educational institutions or separate public
toilets, showers, saunas and dressing rooms for persons of
different sexes.

(c) Nothing in this subsection prohibits separate treatment
of persons based on sex with regard to public toilets, showers,
saunas and dressing rooms for persons of different sexes.

Subsections (b) and (c) were added in the same legislative session in
which the law was amended to prohibit sex discrimination. L. 1974 Ch.
94, L. 1975 Ch. 256. They must therefore be considered as integral
parts of the Legislature's conception of what constitutes sex
discrimination in public accommodations in the first place.

Subsection (b) clearly and unambiguously provides that it is not sex
discrimination in public accommodations to maintain "separate" public
showers and dressing rooms for persons of different sexes. The
question then becomes, does the law require that, although they may be
separate, such facilities must nevertheless be identical? The
Commission believes that the answer to that question must be derived
from subsection (c), which provides that it is not sex discrimination
in public accommodations to provide "separate treatment of persons
based on sex with regard to" those separate facilities which are
allowed by subsection (b).

The Administrative Law Judge construed subsection (c) as allowing
separate treatment of persons based on sex only as long as that
separate treatment results in each sex receiving full and equal
enjoyment of the public place of accommodation at the same price. He
also indicated that he found a violation of the law in this case
because the facilities provided to males and females were different
"and . . . the difference in question was actionable." Thus, the ALJ's
reasoning touched on two issues: whether there is a difference between
the separate facilities, and whether the difference (if any) is
legally significant.

May there be a "difference?" -- The commission understands the ALJ to
have concluded that, by virtue of subsection (c), it is not
necessarily required in order to achieve compliance with the Public
Accommodations Law, that the facilities provided in separate shower
and dressing rooms for men and women be identical. The Commission
agrees. This is implicit in the language of subsection (c), which
allows "separate treatment of persons . . . with regard to" the
separate facilities which subsection (b) permits. Subsection (c) must
be construed to have a meaning that goes beyond merely allowing
"separate" facilities. It is a cardinal rule of statutory
construction, that a statute should be so construed that no clause
shall be rendered surplusage. Cook v. Industrial Commission, 31 Wis.
2d 232, 239-40, 142 N.W.2d 827 (1966). Since the clear and express
meaning of subsection (b) is that it is not unlawful to maintain
separate shower and dressing rooms for persons of different sexes, the
principle articulated in Cook requires the conclusion that subsection
(c) means something more than this.

Subsection (c) also cannot be construed to mean merely that persons
may be required to use only the separate shower and dressing rooms
established for their sex pursuant to subsection (b). It is implicit
in subsection (b)'s authorization of separate shower and dressing
rooms for persons of opposite sexes, that persons of different sexes
may be required to use the shower and dressing room designated for
their sex.

The most reasonable interpretation of the language of subsection (c),
which gives it a meaning distinct from that of subsection (b), is that
the separate facilities permitted by subsection (b) do not have to be
identical.

This conclusion is bolstered, if it is not in fact required, by
consideration of the fact that the Legislature has tolerated and in
fact itself adopted legal requirements that facilities within the
scope of subsections (b) and (c) actually be different for men and
women.

By administrative rule, most public restrooms are actually required to
be "different" for men and women, in that the rules specify that men's
restrooms have urinals as well as water closets, and they specify a
formula relating the number of water closets in women's restrooms to
water closets plus urinals in men's restrooms. Wisconsin
Administrative Code ILHR 55.32. The new "potty parity" law, 1991 Act
110, specifies that public restrooms provide adequate facilities that
females have the same "speed of access" to toilets in their restrooms
as men have to toilets and urinals in their restrooms, sec.
101.128(2), Stats. Although it is not expressly stated in the law, it
was evidently anticipated by the Legislature that the rules which will
be adopted by DILHR under this law will require a greater number of
toilets in women's restrooms than the combined number of toilets and
urinals in men's restrooms intended to serve the same number of
persons. This accentuates the extent to which "differences" in
restroom facilities have been anticipated by the Legislature.

Subsections (b) and (c) of the Public Accommodations Law do not
distinguish between their applicability to toilets and their
applicability to showers and dressing rooms. If they permit
differences between men's and women's toilets, they must permit
differences between men's and women's showers and dressing rooms. The
fact that the Legislature has accepted administrative rules requiring
differences between public restrooms for men and women and has itself
directly required such differences, shows that the Legislature did not
consider subsections (b) and (c) of the Public Accommodations Law to
require that the types of facilities covered thereby -- including
showers and dressing rooms -- necessarily had to be identical.

Public showers and dressing areas for men and women may therefore be
separate, and also need not be identical in terms of the facilities
offered therein.

Is any difference legally significant? -- With respect to the second
issue, the ALJ evidently concluded that a difference in facilities
provided in separate men's and women's showers and dressing rooms is
legally significant if it results in either sex not receiving full and
equal enjoyment of the public place of accommodation or amusement. The
Commission agrees. This standard merely reflects the prohibition in
sec. 101.22(9)(a)1., Stats., against denying another the full and
equal enjoyment of any public place of accommodation or amusement. The
Commission further believes that a difference in facilities in
separate men's and women's showers and dressing rooms would be
impermissible under the Public Accommodations Law if it constituted
the giving of "preferential" treatment to one or the other group,
based on the prohibition against such preferential treatment in sec.
101.22(9)(a)2., Stats. The Commission disagrees with the ALJ, however,
on the question of whether the difference in facilities in this case
had either effect.

Because subsections (b) and (c) effectively provide that different facilities for males
and females are not necessarily violative of the prohibition on denial of "full and
equal enjoyment" and giving "preferential treatment," some other standard
than "difference" must be looked to. The Commission believes that the
law is most reasonably construed as providing that differential
treatment of males and females with respect to the facilities in
separate public toilets, showers, saunas and dressing rooms is
prohibited if the facilities for one group are unambiguously better
than those offered to the other group, or if it is demonstrated that
the differences were either intended to or did have the effect of
discouraging one group's use of the public accommodation or amusement
in question.

In this case, there is no basis on which to conclude that having
aluminum partitions between shower heads is "better" than not having
them, or that having separate changing enclosures is "better" than not
having them and instead having additional locker space. These are
value judgments on which reasonable persons may differ. The record
shows, if anything, that females placed a greater value on the
separate showering and changing enclosures and that males placed a
greater value on locker space. There is also no basis on which to
conclude that the differences had either the purpose or the effect of
discouraging anyone from using Vic Tanny's facilities. As far as the
question of purpose is concerned, the evidence suggests that
Respondent's purpose was to encourage patronage by members of both
sexes by providing facilities of a kind evidently preferred by them.
As far as the question of effect is concerned, the only evidence on
anyone's choice as to using the facilities concerns Complainant's
decision to stop patronizing Respondent, and it is undisputed that his
decision to do so was not affected by the differences in the
facilities. It is therefore concluded that neither a purpose nor the
effect of discouraging males has been demonstrated.

NOTE: The Commission did not consult with the Administrative Law Judge
concerning matters of witness credibility because its reversal is
premised on a different conclusion on the legal issue
presented.